OTLA Sidebar September 2020

2 • SIDEBAR • September 2020 Sidebar is published by the Oregon Trial Lawyers Association and is distributed as a member benefit. Sidebar informs members about OTLA activities and about current events across Oregon, the region and the nation. Reproduction of any material that appears within this publication without permission is prohibited. All text and photos are the work of OTLA staff unless otherwise noted. For editorial and content questions or comments, please contact Nora Fogarty at (503) 223-5587 or at nora@oregontriallawyers.org . OTLA mission: To ensure access to Oregon’s justice system and promote juries and jury service. THE MONTHLY PUBLICATION OF THE OREGON TRIAL LAWYERS ASSOCIATION September 2020 812 SWWashington, Suite 900 Portland, OR 97205 Phone: 503-223-5587 • Fax: 503-223-4101 www.oregontriallawyers.org Membership Director: Kathleen Bergin Executive Director: Beth Bernard Development Director: Nora Fogarty Education Director: Astrid Grigsby-Schulte Deputy Political Director: Jake Hessel Political Director/Lobbyist: Arthur Towers PRESIDENT’S AWARD continued from page 1 Busch crossed with the pedestrian walk sign illuminated. The driver’s negligence cost Busch his left leg and thrust him into a world of uncertainty about how he would recover and pro- vide for his family. He worried about the logistics of returning to work, mov- ing around with a prosthetic and get- ting through daily tasks, but also about the emotional impact of the life-altering event. “My first thoughts were of my family. I have a wife and three kids, and I was also helping take care of my elderly mom… I was worried about being able to financially provide for them and to support them in other ways,” Busch said. Coletti took the case to trial and was a fierce advocate for Busch every step of the way. But he had no way to counter what would prevent Busch from receiving fair compensation despite a victory against the company which had wronged his client. While the waste management company admitted fault and a jury awarded Busch a total of $14 million at trial, the cap on damages reduced his noneconomic award of $10.5 million down to $500,000. The cap was put in place by the Horton decision just two weeks before Busch’s verdict came down. Busch considers himself a proud person. He freely admits he has a hard time accepting help with simple tasks because of the loss of his freedom of mobility, a freedom surely worth more than a one-size-fits-all award of $500,000. “After the cap was put into place… John [Coletti], my family and I sat down and discussed the possibilities and weighed each of them… Person- ally I felt this cap was so unjust, I wanted to go the full hundred yards to the Supreme Court not only because of my own case but because I knew there were others who were in similar situ- ations who would benefit if we could show the cap was unconstitutional... I felt it was the right thing to do.” Dahab, a Guardian and co-chair of the OTLA Amicus Committee, notes that the Committee got involved because “protecting the constitutional right to a remedy is at the core of protecting access to justice. It’s what we do.” Dahab, alongside Clarke and Eiva, co-authored and filed the brief for amicus curiae . The case quickly became a symbol of something larger. After the Horton decision, injured Oregonians were subjected to one-size-fits-all limit on what they were owed, despite a jury’s ruling and despite their own constitutional rights. The appeals process took four long years. Guardian and appellate attorney Hallman said, “Lots of clients have a dedication to their cases. Scott [Busch] had an unfailing dedication to his cause, to giving full voice to the jury in its determination of damages.” Hallman argued the case to the Supreme Court alongside Coletti. After deliberating, the Supreme Court handed down their opinion: the cap was unconstitutional. Busch will now receive his long- awaited compensation, alongside countless other Oregonians whose access to justice is no longer impeded by Horton and a cap. Dahab noted, “The Supreme Court’s decision in Busch is important be- cause it makes clear that our state’s constitution protects the right of every injured Oregonian to be compensated for the injuries they suffer… The legis- lature can’t just come in and take that right away.” Eiva also emphasized the very real and lasting effects of the victory, saying, “The defense attorney tried to present a myth to the Supreme Court, that noneconomic damages are largely symbolic, but they’re not, they’re as real as freedom itself.” The Supreme Court’s decision in Busch was a victory for all Oregonians, made possible only by the incredible strength of the team assembled to fight every step of the way. From Busch’s unhesitating drive to take his cause as far as possible, to Coletti’s relentless pursuit of justice in trial and through the appeals process, to Guardian Kathryn Clarke who not only co- authored the amicus brief alongside Dahab and Eiva but also, from the time the Horton decision came down in 2016, worked tirelessly to find a solution to a problem she could not let stand, and lastly to appellate attorney Hallman, who presented the case. “It is my great honor to recognize this dream team,” Elzinga says. “who would not back down and insisted on going all the way to the Supreme Court to make sure no other Oregonians would have their day in court derailed by an arbitrary, one-size-fits all limit on what a jury decides.” Got News? Contact Nora Fogarty at nora@oregontriallawyers.org or 503-223-5587